THIRD SECTION

DECISION

Application no . 58055/10 Seda DOSHUYEVA and Ismail YUSUPOV against Russia

The European Court of Human Rights (Third Section), sitting on 31 May 2016 as a Chamber composed of:

Luis López Guerra, President, Helen Keller, Dmitry Dedov, Branko Lubarda, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 28 September 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Seda Doshuyeva, who was born in 1978 and Mr Ismail Yusupov, who was born in 1998, are Russian nationals who live in Grozny. They were represented before the Court by lawyers of Stichting Russian Justice Initiative (in collaboration with NGO Astreya), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

2. The application was communicated on 8 June 2011, and on 7 February 2012 the parties exchanged their observations on the admissibility and merits of the application. On 24 September 2015 the Court requested additional factual information from the parties.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

The circumstances of the case

4. The applicants are the wife and the son of Mr Isa Yusupov, who was born in 1969.

1. Abduction of Mr Isa Yusupov

5. At about 3 p.m. on 19 June 2002 Mr Isa Yusupov was driving with Mr Alisan (also known as Iriskhan) Bakayev through the Voykovo (sometimes spelled Voikovo) settlement in Grozny when their car was stopped in Leningradskaya Street by a group of about twenty military servicemen who had been taken there in two armoured personnel carriers (APCs) and two UAZ vehicles. It appeared that the servicemen were manning a mobile military checkpoint.

6. In the presence of a number of local residents both men were blindfolded and taken away in the APCs. The applicants ’ relative, Mr Isa Yusupov, has not been seen since then.

2. Official investigation

(a) Proceedings in criminal case no. 50109

7. In response to the Court ’ s request for a copy of the investigation file, t he Government submitted copies of the documents from the initial criminal case file no. 50109 (in the documents submitted the number is also referred to as 55109) that was opened into the abduction of just Mr Bakayev. This file has 36 pages and chronicles the steps taken by the investigation between July 2002 and May 2010 . In response to the Court ’ s request for additional information, the Government submitted copies of the updated criminal case file no. 50109, which contains 418 pages concerning the investigation into the abduction of both Mr Bakayev and Mr Isa Yusupov and chronicles the steps taken by the investigation between May 2010 and August 2014. The relevant information may be summarised as follows.

8 . On 2 July 2002 Ms L.D. complained to the prosecutor ’ s office that her husband, Mr Bakayev, together with “a man called Isa” had been abducted.

9. On 12 July 2002 Ms L.D. was questioned. She stated that her husband Mr Bakayev had been abducted by servicemen in two APCs on the bridge in the Voykovo settlement.

10 . On 26 July 2002 the Grozny town prosecutor ’ s office initiated a criminal investigation into the abduction of Mr Bakayev in response to his wife ’ s complaint. The case file was given the number 50109. The decision in this regard stated:

“On the evening of 19 June 2002 Mr A. Bakayev and a man named Isa were abducted on the bridge in the Voykovo settlement by unidentified men in camouflage uniforms driving two APCs. The abduction of Mr Bakayev took place in the presence of civilians and military servicemen stationed in Voykovo...”

11. In their submission on the admissibility and merits of the case of 20 December 2011 the applicants stated that they “had been informed about it [the decision to open criminal case no. 50109]” without specifying the date or the circumstances under which they were informed thereof.

12. In their additional submission on the factual circumstances of the case of 10 November 2015, the Government stated that at the material time the applicants had not been informed of the opening of criminal case no. 50109 because they had not lodged any complaint about their relative ’ s abduction, whereas the relatives of Mr Bakayev had been informed thereof on 26 July 2002.

13 . On 8 August 2002 the investigators ordered the Zavodskoy district department of the interior ( “ Заводской районный отдел внутренних дел” ) (hereinafter the Zavodskoy ROVD) in Grozny to carry out operative search measures stating, amongst other things, the following:

“The investigation established that... Mr A. Bakayev and an unidentified person known as Isa were taken away to an unknown destination by unidentified men wearing camouflage uniforms in two APCs. The abduction took place in the presence of civilians and servicemen stationed in the settlement of Voykovo, specifically, in the presence of serviceman A.E....”

14. In October 2002 the investigators forwarded requests for information to various authorities, asking whether any special operations had been carried out on the date of the abduction of Mr Bakayev and if so, whether anyone had been detained. These requests did not yield any pertinent information.

15 . On 26 November 2002 the investigation was suspended. The suspension decision referred only to the abduction of Mr Bakayev; it did not contain any references to the applicants ’ relative Mr Isa Yusupov:

“...the present criminal case was opened on 26 July 2002 in connection with the abduction on 19 July 2002 of A. M. Bakayev.

The preliminary investigation established that on the evening of 19 July 2002 unidentified persons in camouflage uniforms had detained Mr Bakayev on the bridge in the Voykovo settlement and taken him to an unknown destination. His whereabouts have remained unknown since.

Taking into account that the time-limit for the preliminary investigation has been reached and all of the possible steps have been taken.... It has been decided to suspend the investigation in the criminal case...”

16. From the documents submitted by the parties it is apparent that between 2002 and 2010 the applicants neither complained of Mr Isa Yusupov ’ s abduction to the Zavodskoy ROVD nor did they maintain contact with the relatives of Mr Bakayev concerning the proceedings in criminal case no. 50109.

17 . On 4 May 2010 the first applicant contacted the investigators in criminal case no. 50109. She submitted a request that the investigations department of the Zavodskoy district prosecutor ’ s office in Grozny grant her victim status in the criminal case as follows:

“ ...On 19 June 2002 my husband Mr Isa Yusupov, who was born in 1969, was detained by armed men in military vehicles in Leningradskaya Street in the Oktyabrskiy district of Grozny. My husband disappeared thereafter. In connection with this, the Oktyabrskiy district prosecutor ’ s office opened a criminal case.

A long time has passed since the incident and I have started to doubt the effectiveness of the criminal investigation. I therefore decided to have recourse to the [procedural] rights given to victims in criminal proceedings under Articles 42, 119 ‑ 121, and 123-125 of the Code of Criminal Procedure and Article 46 of the Russian Constitution... However, neither I nor my relatives have been granted victim status in the criminal case. For that reason I have not been able to participate in the proceedings to the extent allowed by the Code of Criminal Procedure...

Mr Isa Yusupov is my husband. The crime committed against him has caused me psychological and material damage.

On the basis of the above I request that you:

1. Grant me victim status in the criminal case opened in connection with the disappearance of my husband Isa Yusupov;

2. Inform me of the progress in the investigation of the criminal case;

3. Resume the investigation if it has been suspended;

4. Inform me of the results of the examination of the present request... ”

18 . On 21 May 2010 the investigation in criminal case no. 50109 was resumed. The decision stated:

“... On 19 June 2002 Mr A. Bakayev and Mr Isa Yusupov were detained and taken away in two APCs by unidentified men wearing camouflage uniforms.

In connection with this, on 26 July 2002 the Grozny prosecutor ’ s office opened criminal case no. 50109 under Article 126 of the Criminal Code.

On 26 November 2002 the investigation in the criminal case was suspended under part 1 of paragraph 1 of Article 208 of the Code of Criminal Procedure, that is to say for failure to identify the perpetrators.

On 20 May 2010 Ms S. Doshuyeva, the wife of the abducted Mr I. Yusupov, requested that the Zavodskoy district investigations department grant her victim status in the criminal case.

In connection with the decision to grant Ms S. Doshuyeva victim status in the criminal proceedings and her questioning on the matter, it is necessary to resume the investigation in criminal case no. 50109...”

19 . On the same date, 21 May 2010, the first applicant was granted victim status and questioned. She stated that on 19 June 2002 her husband had left by car to do an errand, together with fellow villager Mr Bakayev, and had not returned home. Several days later she had found out from her neighbours that her husband Mr Isa Yusupov and Mr Bakayev had been abducted by armed men in APCs.

20. On the same date, 21 May 2010, the first applicant requested the investigators to grant her access to the contents of criminal case file no. 50109. It is unclear whether any reply was given to her request.

21. On 22 May 2010 the investigation was suspended and then resumed on 4 August 2011. The proceedings were subsequently suspended and resumed on several occasions; the last suspension took place on 6 August 2014. The proceedings are still pending.

22 . In their additional submission on the circumstances of the case, dated 15 November 2015, the applicants stated that on 27 October 2015 their lawyer had asked the Oktyabrskiy district police station (“ Октябрьский районный отдел внутренних дел “) (hereinafter the Oktyabrskiy ROVD) in Grozny to produce a copy of the first applicant ’ s complaint concerning Mr Isa Yusupov ’ s abduction, which had been lodged on 20 June 2002. In reply the police informed the applicants that the document no longer existed as the relevant registration logs had been destroyed following expiry of the time-limit for their storage.

23 . In their additional submission on the factual circumstances of the case, the first applicant stated that she had complained about her husband ’ s abduction to the police in June 2002, but had no written proof of the complaint. She also stated that at the end of June 2002 she had been approached by a military officer who had threatened to harm her and her relatives if she were to continue searching for her husband. Out of fear for her life and that of her relatives, on an unspecified date in 2002 she had moved to Moscow and only returned to the Chechen Republic in 2010. The applicants did not enclose any documents substantiating this information other than the first applicant ’ s written statement dated 17 October 2015.

24 . According to the Government, the applicants did not lodge any official complaints concerning their relative ’ s alleged abduction within the framework of the criminal case.

( b) Relevant civil proceedings

25 . On 25 March 2004 the Leninskiy district court of Grozny granted the first applicant ’ s request and declared Mr Isa Yusupov a missing person as of 19 June 2002. The decision, which made no reference to proceedings in criminal case no. 50109 and referred only to proceedings in criminal case no. 40120, stated:

“...Ms Doshuyeva requested the court to declare her husband a missing person on the basis of the following:

At about 11 a.m. on 19 June 2002 her husband Mr Isa Yusupov had left home and had not returned. She has had no news of him since that date. In connection with this occurrence, the Oktyabrskiy district prosecutor ’ s office in Grozny had opened a criminal case. The measures taken by the investigation failed to produce results. According to Ms Doshuyeva, the declaration of her husband as a missing person is a prerequisite for preparing a pension application in respect of the loss of a breadwinner...

According to the information statement of the Oktyabrskiy district department of the interior in Grozny no. 32/34 of 24 December 2003, [on an unspecified date] the Oktyabrskiy district prosecutor ’ s office opened criminal case no. 40120 in connection with the abduction of Mr Isa Yusupov on 19 June 2002. The whereabouts of Mr Isa Yusupov remain unknown.

Considering that the establishment of the above fact is of legal significance for the applicant, and that it is impossible otherwise, non-judicially, to establish that fact, on the basis of the above the court, decides ...

To recognise Mr Isa Yusupov as a missing person as of 19 June 2002...”

The decision became final on 5 April 2004.

26 . According to the Government ’ s submission of 15 November 2015, criminal case no. 40120 was erroneously mentioned in the court ’ s decision as the criminal case concerning the investigation of the abduction of another person, Mr Adam S.

COMPLAINTS

27. Relying on Article 2 of the Convention, the applicants complained that their relative Mr Isa Yusupov had disappeared after allegedly having been abducted by State agents and that the authorities had failed to investigate the matter effectively. Under Article 3 of the Convention they complained that they had endured mental suffering as a result of their relative ’ s disappearance and the authority ’ s reaction thereto. Under Article 5 of the Convention they complained of the unlawfulness of their relative ’ s detention by State agents and, under Article 13 of the Convention, of a lack of domestic remedies in respect of the alleged violations.

THE LAW

28. The applicants complained of a violation of Articles 2, 3, 5 and 13 of the Convention as a result of Mr Isa Yusupov ’ s abduction. The respective provisions, in so far as relevant, provide:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 5

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A. The parties ’ submissions

29. The Government submitted that the investigation in the criminal case was still in progress and that the applicants ’ complaints had therefore been lodged prematurely. They stated that the applicants had failed to exhaust domestic remedies by lodging their application prior to the completion of the investigation into the abduction and by failing to lodge a civil claim for damages and to appeal against the investigations ’ actions or decisions in domestic courts.

30. In their submission of additional factual information in the case on 15 November 2015, the Government stated that the application should be declared inadmissible as having been lodged out of time, since the applicants had failed to explain their delay in bringing the application to the Court and, in particular, to justify their eight years of inactivity between June 2002 and May 2010.

31. The applicants submitted that the only remedy in their case ‒ namely an investigation into the disappearance ‒ had proved ineffective and there had been no excessive or unexplainable delays in the lodging of their application with the Court. In particular, they stated that they had complained in person about the abduction, that the armed conflict in Chechnya had rendered some delays in the investigation unavoidable, that the fact that the criminal case had been opened led them to assume that the investigation would be carried out subject to the standards applicable to any other investigation of a similar kind in the Russian Federation, and that the authorities had failed to grant them victim status in criminal case no. 50109 and to keep them informed of the progress in the proceedings. The applicants further claimed that their lack of legal knowledge and of means to hire a lawyer precluded them from properly evaluating the effectiveness of the investigation. The applicants were not aware of the Court ’ s case-law or other sources of information pertaining to disappearances in Chechnya which could have made them doubt the effectiveness of the measures taken by the authorities. Finally, referring to Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159, ECHR 2009, the applicants submitted that the six-month time limit did not apply to continuing situations such as disappearances.

B. The Court ’ s assessment

32. The Court considers that it is not required to decide whether the applicants can be considered to have exhausted domestic remedies or whether there existed special circumstances which would exempt them from the obligation to pursue such remedies. Even supposing that the applicants had no effective remedies, they would not be re lieved of the obligation to comply with the six-month rule (see Utsmiyeva and Others v. Russia (dec.), no. 31179/11, and Yildiz and Others v. Turkey (dec.), no. 34542/03).

33. Although the respondent Government tried to raise the issue of the applicants ’ compliance with the six-month rule (see, mutatis mutandis , N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002 ‑ X ), the issue of the applicants ’ compliance with the admissibility criteria calls for the Court ’ s consideration proprio motu (see Palić v. Bosnia and Herzegovina , no. 4704/04 , § 48, 15 February 2011 ) .

Compliance with the six-month rule

(a) General principles

35. Where disappearances are concerned, they give rise to a continuing situation and, depending on whether or not the passage of time affects what is at stake , it is essential that applicants who are relatives of missing persons do not delay unduly the bringing of such a complaint about the ineffectiveness or lack of any such investigation before the Court. With the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospect that an effective investigation can be undertaken will increasingly diminish; the Court ’ s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, where disappearances are concerned, applicants cannot wait indefinitely before bringing their case to the Court. They must demonstrate a certain degree of diligence and initiative and introduce their complaints without undue delay (see Varnava and Others, cited above , §§ 148 and 161).

36. In most disappearance cases, unlike cases concerning killings, allowance must be made for the uncertainty and confusion which frequently mark the aftermath of a person ’ s disappearance. However, even in those cases, applications can be rejected as out of time where there has been an excessive or unexplained delay on the part of applicants once they have, or should have, become aware that the investigation has lapsed into inactivity or become ineffective and there is no immediate, realistic prospect of an effective investigation being conducted in future. Where initiatives are being pursued regarding a disappearance, applicants may reasonably await developments which might resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress resulting from such investigative measures, issues involving undue delay will not generally arise. However, where there has been a considerable lapse of time, accompanied by significant delays and lulls in investigative activity, there will come a point when the relatives must realise that no effective investigation has been, or is likely to be, conducted. The point at which this stage is reached will inevitably depend on the circumstances of the particular case (see Varnava and Others , cited above, §§ 162 and 165).

37. Where there is an investigation of sorts, even if sporadic and plagued by problems, the relatives may reasonably wait a few years until any hope of progress being made has effectively evaporated. Where more than ten years have elapsed, the applicants would generally have to show convincingly that some ongoing, and concrete, advances were being made to justify a further delay in bringing their case to the Court. Stricter expectations would apply in cases where the applicants have direct domestic access to the investigative authorities ( Varnava and Others , cited above, § 166) .

38. Applying the Varnava and Others principles, the Court recently found in the case of Er and Others v. Turkey (no. 23016/04, §§ 55-58, 31 July 2012) that the applicants ‒ who had waited for a period of almost ten years after the disappearance of their relative before lodging their application ‒ had complied with the six-month rule because an investigation was being conducted at the national level. The Court reached a similar conclusion in another case in which the domestic investigation into the events had been pending for more than eight years and the applicants were doing all that could be expected of them to assist the authorities (see Bozkır and Others v. Turkey, no. 24589/04, § 49, 26 February 2013).

39. In the cases concerning enforced disappearances in Chechnya and Ingushetia, the Court has examined applications lodged between nine and more than ten years after the disappearances and the institution of the corresponding criminal investigation (see, among recent examples, Sultygov and Others v. Russia , no s . 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11 , §§ 375-80, 9 October 2014, and Sagayeva and Others v. Russia , nos. 22698/09 and 31189/11 , §§ 61-62, 8 December 2015 ), where interruptions in the ongoing investigations amounted to more than seven years. The Court found that the applicants ’ delays in bringing their applications to the Court were justified as they were able to demonstrate that they had lodged their abduction complaints without undue delay, had subsequently maintained reasonable contact with the authorities, had sought information on the progress of the investigation and had finally lodged their applications soon after receiving information which cast doubt on the effectiveness of the ongoing proceedings.

(b) Application of the principles to the present case

43. At the same time, the Court notes that on 25 March 2004 the first applicant was informed, albeit mistakenly, in the course of proceedings in which her husband was declared missing, that another criminal case, number 40120, had been opened into her husband ’ s abduction (see paragraph 25 above). However, there is nothing in the parties ’ submissions to suggest that the first applicant contacted the investigating authorities concerned with that case either. The documents submitted contain no evidence to suggest that the applicants have ever tried to contact the authorities at all to clarify whether a second criminal case had in fact been opened or which of the prosecutors ’ offices was actually conducting the investigation into the disappearance of their husband and father. The information concerning the erroneous reference to criminal case no. 40120 in the court ’ s decision declaring Mr Isa Yusupov a missing person was clarified only during the proceedings before the Court. The lack of any contact between the applicants and the investigators of that criminal case for more than eleven subsequent years since 2004 indicates that the applicants must have considered the investigation of that criminal case to be likewise ineffective.

44. The Court further notes that even in the context of the counter ‑ terrorist operation in the region at the time, the applicants nonetheless had direct access to the authorities and could have applied for information or otherwise communicated with the investigators regarding the abduction of their family member, even before the first applicant ’ s alleged move to Moscow (see paragraph 23 above). The applicants received no information from the authorities for more than eight years, and there is no evidence in the documents submitted that they attempted to request any such information of their own motion at any time during such a significant period without any news. They remained passive in respect of the seemingly dormant domestic investigation, unlike applicants in many other similar Chechen disappearance cases (see, amongst many other authorities, Kaykharova and Others v. Russia , nos. 11554/07, 7862/08, 56745/08 and 61274/09, § 129, 1 August 2013 , and Gakayeva and Others v. Russia, nos. 51534/08, 4401/10, 25518/10, 28779/10, 33175/10, 47393/10, 54753/10, 58131/10, 62207/10 and 73784/10, § 318 , 10 October 2013 ) .

45. The Court observes that since the applicants are the wife and son of the disappeared person, they could be expected to display due diligence and take the requisite initiative in order to inform themselves whether any progress was being made in the investigation into the disappearance of their family member. The absence of any news from the investigators of such a serious crime for such a significant period should have prompted them to draw the appropriate conclusions (see, for example, Açış , cited above , § 42) .

46. Furthermore, the Court notes that the investigation into the disappearance of the applicants ’ relative had been ongoing for more than eight years at the time they lodged their application. It was pending without any meaningful investigative steps had been taken by the authorities, or new evidence or information appearing which would provide the applicants with grounds for hope or some realistic prospect that the search for their missing relatives would be effective and attain tangible results. If the applicants remained unaware of the ineffectiveness of the investigation despite such a significant lull in the proceedings, the Court considers that this was a consequence of their own negligence (see, for example, Findik and Omer v. Turkey (decs.), nos. 33898/11 and 35798/11, § 15).

For these reasons, the Court by a majority,

Declares the application inadmissible .

Done in English and notified in writing on 23 June 2016.

             Stephen Phillips Luis López Guerra Registrar President